Charles O. Lauve and O. S. KeUogg, for intervenor. L. De Poorter, for tne receiver.
PARDEE, J. The evidence establishes, as the master reports, that the intervenor received the injuries of.which he complains in attempting to get on the passenger train ofthe Texas & Pacific Railway Company while the same was in motion, and before it stopped at a regular station on the .' line; that in so getting on the train he was neither advised nor compelled by the agents of the company; ,and that the intervenor's said attempt contributed directly to his injuries. It is the settled jurisprudence of Louisiana,whose laws control as to the responsibility in this case,. that no ean recOver damages for injunes received where he has himself contributed to the negligence which caused the injury. See Knight v. Railroad (b., 23 La. Ann. 462. and cases there cited. Attempting to moune a moving railroad train without the advice and direction of the railroad's agents, is n'egligence, according to all respectable authorities, : text-books, and adjudged cases. See Shear. & R. Neg. § 283; Hutch. Carr. § 641;2 Ror. R. R. The case of Knight v. Railroad Co., above cited, was directly on the point. The exceptions to the master's report will be overruled,and the report will be confirmed.
Olrcuit Oourt, D. LouiBiana. June 14,1888.)
A written contract, by which plaintiff agrees to sink an artesian well for .de· ,JJ)1l9&llt; supplying. a giyenquantlty of water, does not require that the water should be potable and fit for washing and for making steam, though plaintiff knew defeD(iant was a hotel keeper, and desired water of that character for hotel purposes. .
.On motion for new trial. Aqti9Q.QytheAroerican against.Robert E. Rivers to recover for sinking an artesian well. Verdict for plaintiff', and defendant moved for a new trial. Before PARDEE and BIJ,LINGS, JJ. A. O. LeurUi; , Gibson, HaU&:Mo'll..tgomeryand Rouse &- Grant, for PARDEE, J. On original 'plaaUings in this case the plaintiffwlts contract sued on, admits entitled to judgment.. The answer admits plaintiff's compliance with all the specified stipulations of the contract, and reststha defense upon a claimed construction, not justified bY,the
delayed by inability to obtain copy of opinion at time>ofrendition.
letter of the contract, whichwould in effect add to the guaranties already stipulated an additional and onerous one wholly out of proportion to theconsideration named in the contract. The contract is one to sink artesian wells. The plaintiff assumed the risk of and guarantied the quantity of water to be furnished. The defendant says that as he was a hotel keeper and the plaintiff knew he wanted the water for hotel purposes, that in addition to the quantity of water expressly guarantied the plaintiff impliedly guarantied that the water should be potable and fit for washing and to make steam. The subject of the contract was necessarily an experiment. If successful, particularly in obtaining pure water, the advantage was.to be wholly the defendant's, and the value of the wells would naturally be 10, if not 20, times the comiflpratioll to be paid plaintiff fot doing the work. The experiment was nectJdsarily twofold. i. as to quantity and quality of water suppl," The parties expressly . stipulatecj in writing that the plaintiff should aSSUllle all risk as to quantity. To construe the contract so as to charge him with the risk as to , quality is to change the character of the contract fr9m one for the sinking . ofwells to one for the supplying a hotel with water, and bind the plainunius est extiff to a contract he never made. The trite maxim; dUBio alterius, or expressumfaciJ, cessare tacitum, decides the case. SeeBrooIIl. Leg. Max. 5Q5. I( If there be several things of the same class or kind. the expression of one or more of them implies the exclusion of all not expressed; and this, even if the .Jaw would have implied all if none had enumerated." 2 Pars. Cont. 28; Chit. Cont. (9th Amer Ed.) 25. In the contract in question the parties cOl1sidered the guaranties to begiven by the plaintiff, and they expressly stipulated for the guaranty as to quantity, and thereby it is manifest they excluded the more hazardous one as to quality. On the pleadings, as amended, setting up a subsequent parol contract on the. part of the plaintiff to guaranty the quality oj he water, the case seems to have been submitted to the jury on the evidence, and there is no substantial complaint that the finding was not in accordance with thelaw and the evidence. The. affidavit of newly-discovered evidence is not sufficient to warrant. a new trial. It does not show the diligence used. The evidence as set. forth is cumulative, and if true and in the case it ought not to affect the verdict. That the phiintiff as well as the defendant hoped to get. water may be conceded, but that he contracted with the defendant to guaranty the quality ofthe water cannot be proved from conversations, however explicit, after the contract between two of the plaintiff's agents as to the hopes, expectations, undertakings, and agreements to get good water l tis long as the matter concededly did not take the form ora contract with a consideration. According to what information I have as to the evidence on the trial, I am well satisfied that what defense there is in the-' case wholly arises under the construction proper to begiven to the written contract sued on. The construction given by the trial judge in his charge. to. the jury was correct, and the charge requested by the defendant was properly refused. The verdict was in accordance with the
and the evidence adduced, and ought not to be disturbed. for a new trial is therefore refused.
GILES 'iI. PAXSON
·1. DEPOSITIONS-DEDIMUs-CERTnrroATE-DISINTERESTEDNESS OF COMMISSIONRR.
(Oirouit COU'I't, No D. I()'/,()a, E. D. December 8, 1888.)
Pepositions taken for use in the federal conrts of Iowa under Rev. U. S. § 866, by virtne of a dedimltB to a commissioner need have no certificate tllat the commissioner is disinterested, as the section provides that the depositions shall be taken according to "common usage," which means the statutory provisions of the state; and under the Code of Iowa such certificate is unneces'sary, sections 868-865, providing for taking depositions before a disinterested commissioner upon notice, without a dedimuB, not applying to testimony taken under section 866. For like reasons the commiBBioner need not certify that the testimony taken by a' clerk was reduced to writinA' in his presence, as provided in section 864.
RUlE-REDUCTION TO WRITING.
SAME"'"'-SIGNATURE OF WITNEsS-JURAT.
Where,inaccordancll with ,Code Iowa, § 8787, the commissioner certifies that the, deposition was subscribed and sworn to by the deponent at the time and place mentioned, it is unnecessary to follow the signature of the witness with a jurat.
4.B..ut:E-WR:rTING ANSWERS SEPARATELY FROM INTERROGATORY.
, While ,under Code Iowa, § 87a5, the answer of a witness should be written under the interrogatory, it is sufficient that the interrogatories are numbered, and the answers thereto are written down separately, with corresponding numbers, when the certificate shows that both the interrogatories and answers Weri;l, read over to the witness before signing, 8S under section 3741 an unimportant deviation from the statutory directions will not vitiate the deposition's where no prejudice can result from such deviation.
SA.ME-IDENTITY OF WITNESS.
Where a commission issues to take the testimony of "W. E. F., of A., ",and the caption recites that it is the "deposition of W E. F., taken at A.." toe deposition is properly signed, and the certificate shows that pursuant to the commission the notary caused the 'witness to come beforehirn, etc., and that he subscribed and swore to the deposition, the deposition sufficiently appears to be that of the person mentioned in the commission. It is proper to return with the deposition of a witness a copy of a deed referred tollY him, whether the deed is admissible in evidence at the trial or not.
At Law. On motion to suppress depositions. Action by William A. Giles against Charles Paxson and others.Defendants filed exceptions to certain depositions taken by plaintiff. Ad(zms&:M:athew8, for plaintiff. Ed. P, Seed8 and Henry a. Noyes, for defendants.
W" Martin and other witnesses on
The defendants move to suppress the depositions of Joseveral grounds, the first being